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WASHINGTON – A Heritage Foundation seminar on religious freedom yesterday produced two surprises: a conservative religious freedom scholar defending the birth control mandate and her liberal counterpart criticizing the Obama administration for the same policy.

Marci A. Hamilton, Paul R. Verkuil Chair in Public Law at the Benjamin N. Cardozo School of Law and an expert on religious freedom, said there was no constitutional issues with the mandate. William Galston, Ezra K Zikha Chair in Governance Studies at The Brookings Institution, argued against the mandate but was unsure how the U.S. Supreme Court would rule on its constitutionality. Hamilton described herself as a life-long Republican while Galston worked in the White House on religious freedom issues under President Bill Clinton.

"It's clearly constitutional," Hamilton said. "And the reason it's constitutional is this is the most extreme request ever made under [the free exercise clause]. This is not a request that involves someone saying that I can't practice my religion, it's not a request that says that I can't believe what I want to believe, this is a request that says I should not have to put into a fungible pile of money that individuals who don't believe what I believe will use in ways that I disapprove of. This is the first free exercise challenge in which the religious believer is saying that he wants to be able to deter others from using money in ways that he disagrees with and they are not his fellow believers."

Hamilton made a similar argument in a Thursday article for Justia.com in which she defended a recent federal court ruling in O'Brien v. HHS upholding the birth control mandate. In that case, the plaintiff, a for-profit mining company, objected to paying for health coverage for the birth control services because their religious beliefs find them morally objectionable.

In her comments at The Heritage Foundation, Hamilton likened the plaintiff's complaints to "balkanization," or the splitting of regions along hostile religious or ethnic lines.

"If you're not watching the Middle East, or the Balkans, you should be, because that is a scary future," Hamilton said.

Galston, on the other hand, said the birth control mandate was a political mistake, bad public policy and should be considered a violation of the free exercise clause.

"Had I been in the White House, I would have argued vociferously for a much broader exemption than the one the Obama administration ultimately settled on," Galston said.

Galston added, though, that he is "not at all confident" that the U.S. Supreme Court would agree with him if it were to hear a challenge to the birth control mandate. This view was mostly based upon the Supreme Court decision in Employment Division v. Smith (1990). The Court decided that members of The Native American Church did not have the right to use peyote, a hallucinogenic drug, in a religious ritual because the law against its use applied to everyone and was neutral with regard to religion.

The birth control mandate was announced by the Department of Health and Human Services in January. It required employers to cover contraception, sterilization and some abortifacient drugs without co-pay in their employer-provided health insurance plans. There is a religious exemption, but the exemption is so narrow that most religious groups do not qualify. Dozens of lawsuits have been filed by both religious groups and private employers challenging the constitutionality of the provision.

Galston and Hamilton was joined on the Wednesday panel by Dr. Richard Land, president of the Southern Baptist Convention's Ethics and Religious Liberty Commission and executive editor for The Christian Post, and Jay Sekulow, chief counsel for the American Center for Law and Justice.

The full symposium, called "A Civil Dialogue: Are Religious Institutions and Individuals Being Treated Like Second Class Citizens?" can be viewed on the Heritage Foundation website.